2016 (8) TMI 1378 - HC - Indian Laws

Jurisdiction - Powers of the police and other authorities in Kerala, under the special laws dealing with minerals and minor minerals, to deal with sand or other minerals brought to Kerala from another State where there is prohibition of export of such materials to neighbouring States. Whether prohibition and control of export of sand in the State of Karnataka, prohibiting such export to the neighbouring States including Kerala, is binding on the State of Kerala, and whether the police authorities in Kerala are bound to honour such prohibition and restriction? Whether the police authorities or other authorities appointed by the Government in Kerala, will have powers under the Sand Act, or the MMDR Act and the Rules framed thereunder, to seize the sand imported from the State of Karnataka in such circumstance of prohibition or restriction, and to proceed for prosecution and other actions including confiscation? Held that - The extent of legislative powers of the Union and the States is dealt with under Part XI of the Constitution of India. Clause 1 of Article 245 of the Constitution empowers the parliament to make laws for the whole or any part of the territory of India, subject to the other provisions of the Constitution. This clause also provides that the legislature of a State may make laws for the whole or any part of the State. Article 246 deals with legislative powers of the Centre and the States on the different matters enumerated in the three lists in the VIIth schedule of the Constitution. Clause 3 of Article 246 provides that subject to Clauses (1) and (2) dealing with legislative powers regarding matters in the union list and the concurrent list, the legislature of any State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II (State list) in the VIIth schedule. Thus it is very clear that the legislative powers of a State cannot extend beyond the territorial limits of the State and beyond the scope of the subject matter in the State list or in the concurrent list as the case may be, or beyond the scope of the object of legislation. In the present circumstances involving sand exported from the State of Karnataka, the Sand Act in Kerala can have no application, and the police and other authorities in Kerala cannot invoke the powers of seizure or prosecution or confiscation with respect to such Sand, under the provisions of the Sand Act in Kerala. Whether the MMDR Rules in Kerala are self contained, to deal with all sorts of transactions and situations in respect of minor minerals including sand? - Held that - Sub Rule 3 of Rule 3 of these Rules made under Section 23C of the MMDR Act provides that no person shall transport or cause to be transported any mineral or mineral products by any carrier without having a valid mineral transit pass under these Rules. In this case the petitioners did not have any permit or pass justifying import of sand from Karnataka or justifying transportation of such sand within the State of Kerala. The police seized the sand and the vehicles when the petitioners failed to produce any pass or permit as prescribed under the law. Of course, it is true that the above Rules were made in 2015 as authorised under Section 23C of the MMDR Act, but the vehicles and the sand in this case were seized long back in February 2012. Still the position is covered by the MMDR Act itself. Illicit import of sand from other states, or illicit transport of such sand within the State of Kerala was not in fact covered by the Kerala Rules of 1967 at the relevant time. But at the same time the alleged act is a clear violation of Sub section 1A of Section 4 of the MMDR Act. When such an act of offence is committed, and if it is punishable under the Principal Act, or if such a situation is not covered by the Rules made by the Government of Kerala, such act of offence will have to be dealt with under the Principal Act. The scope of the Rules framed by the Government under Section 15(1) of the MMDR Act will not go beyond the object of those Rules specified under Section 15(1A). Illicit import of sand from other states and illicit transportation or possession of such sand within the State of Kerala is not in fact the subject matter dealt with under the MMDR Kerala Rules of 1967 or 2015 - Once it is found that minerals include minor minerals, and that the subject matter of dispute in these cases is not in fact covered by the Sand Act in Kerala, or the MMDR Rules in Kerala, the prosecution procedure including seizure and arrest as provided under the MMDR Act, will have to be followed. The general powers of the police for arrest and seizure under the Code of Criminal Procedure are not specifically ousted or excluded by any of the provisions of the MMDR Act. On the other hand the offence punishable under Section 21 is made specifically cognizable also. That the offence is made cognizable means that any police officer, competent and empowered to act under the Code of Criminal Procedure, is competent to make arrest and to make seizure of properties, but prosecution can be launched only by the persons authorised by the Government under Section 22 of the MMDR Act. Contraband articles including minerals are liable to confiscation by court orders under Sub Section 4A of Section 21 of the MMDR Act - Competence of the police officer who made seizure in this case, to initiate prosecution under Section 22 of the MMDR Act cannot be questioned or doubted, because there is already a Government order authorising police officers of and above the rank of Sub Inspectors to initiate prosecution under Section 22. If an officer is authorised under the law to initiate prosecution, and if his powers as police officer under the Code of Criminal Procedure including Section 102 of the Code of Criminal Procedure are not specifically ousted or excluded under the special law, and when the offence is specifically made cognizable, the powers and authority of such police officer to make seizure under Sub Section (4) of Section 21 cannot be questioned or challenged. Such appointment specifically under Sub Section (4) of Section 21 is required only in the case of other categories of officers than police officers. In view of the specific provisions in Section 22 of the MMDR Act, prosecution on the basis of a final report under Section 173(2) Cr.P.C. is not possible. As regards the other police powers including arrest and seizure, there is no specific exclusion by the special law, and so, such general powers can be exercised by the police, including the powers to make arrest, and to seize properties. Petition disposed off.

Summary

Issues Involved:
1. Binding nature of prohibition and control of export of sand from Karnataka on Kerala.
2. Authority of Kerala police and other authorities to seize sand imported from Karnataka under the Sand Act or MMDR Act and Rules.

Issue-wise Detailed Analysis:

1. Binding Nature of Prohibition and Control of Export of Sand from Karnataka on Kerala:

The legal judgment addresses whether the prohibition and control of export of sand in Karnataka is binding on Kerala. Article 301 of the Constitution declares that trade, commerce, and intercourse throughout India shall be free, subject to other constitutional provisions. Article 304 allows State Legislatures to impose reasonable restrictions on trade, commerce, or intercourse within a state in the public interest. The Government of Karnataka issued a circular prohibiting the export of ordinary sand to other states to meet local demand, which was upheld by the Karnataka High Court. The Kerala High Court emphasized that such prohibitions must be respected by other states to maintain federal harmony and avoid conflicts. Despite Kerala permitting the import of sand, it must honor Karnataka's prohibition. Therefore, the police and authorities in Kerala are bound to respect the prohibition imposed by Karnataka.

2. Authority of Kerala Police and Other Authorities to Seize Sand Imported from Karnataka:

The judgment explores whether Kerala authorities can seize sand imported from Karnataka under the Sand Act or the MMDR Act and Rules. The Sand Act in Kerala primarily aims to protect river banks and regulate sand extraction within Kerala, and does not apply to sand imported from other states. However, the MMDR Act, which governs the development and regulation of mines and minerals, including minor minerals, applies. The MMDR Act prohibits the transport or storage of minerals without lawful authority and provides for seizure, prosecution, and confiscation of illegally transported minerals. The Kerala Minor Mineral Concession Rules and the Kerala Minerals (Provisions for Illegal Mining, Storage, and Transportation) Rules, framed under the MMDR Act, regulate the transport and storage of minor minerals, including sand. The police and other authorities in Kerala can exercise powers under these rules to seize sand imported from Karnataka without valid permits. The judgment concludes that such situations must be dealt with under the MMDR Act, and appropriate proceedings, including seizure, prosecution, and confiscation, are possible under the Act.

Conclusion and Orders:

The court declared that illicit import, possession, or transport of minerals, including sand, not covered by the Kerala Sand Act or any special law, must be dealt with under the MMDR Act. The Kerala Sand Act does not apply to the given situations. The writ of mandamus sought by the petitioners to release their vehicles was denied. The court directed that appropriate orders, including confiscation, be passed by the competent court. If the police have not reported the seizure, they must do so immediately. The court having jurisdiction shall pass appropriate orders regarding the seized sand and vehicles. Applications for interim custody of the vehicles should be disposed of without delay.